Appeal from the District Court of Natrona County The Honorable W. Thomas Sullins, Judge
The opinion of the court was delivered by: Golden, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] In these two consolidated appeals, the Town of Evansville Police Department (Department) appeals the district court's order of reversal for agency inaction filed July 23, 2009, in No. S-09-0178 and the district court's order denying motion for relief from an order filed April 15, 2010, in No. S-10-0133. The appeals arise from the Department's effort to terminate the employment of Lonnie Porter (Porter), a police officer in the Department. For the reasons set forth below, we affirm the district court's orders and remand to that court with directions that it issue its order ordering the Department immediately to reinstate Porter to his employment as a police officer in the Department effective February 12, 2008.
[¶2] The Department states its issue in this appeal to be:
Did the District Court lack subject matter jurisdiction to consider the Petition for Review due to the failure of the Petitioner to file a proper and timely Notice of Appeal?
Porter offers this statement of the issue:
Did Sgt. Lonnie Porter effectively appeal his termination of employment from the Evansville Police Department timely by serving his request for hearing on the mayor and the attorney for the Town and the Police Department?
[¶3] The Department filed a reply brief, but we shall not consider it because it failed to precisely and concisely set forth on the first page those new issues and arguments raised by Porter's brief which are addressed in the reply brief. W.R.A.P. 7.03.
[¶4] The Department states its issues in this appeal to be:
1. Does Rule 60(b)(4) mandate relief as the district court relied on a void ordinance in its Order?
2. Did the district court's denial of the Rule 60(b) motion constitute an abuse of discretion as the court mistakenly utilized law no longer in effect at the time of petitioner's termination, and it would be inequitable to allow the Order to stand?
3. Did the district court properly refuse to consider the Rule 60(b) motion for the procedural reasons stated by the district court?
Porter states the issue to be:
Did the district court below commit an error of law in denying the Town of Evansville's W.R.C.P. Rule 60(b) motion in this administrative appeal?
[¶5] The Department filed a reply brief, but we shall not consider it because it too failed to precisely and concisely set forth on the first page those new issues and arguments raised by Porter's brief which are addressed in the reply brief. W.R.A.P. 7.03.
[¶6] Porter had been employed in the law enforcement field for nearly sixteen years. From approximately July 2, 2001, until February 12, 2008, he was employed by the Department. The Department claims that its police chief, Zachery Gentile, hired Porter. In approximately September of 2007, Porter was promoted to the rank of Sergeant, and he then supervised other police officers on his shift. On September 9, 1996, the Town of Evansville in Ordinance No. 9-96 adopted an employee personnel manual entitled "Employee Handbook--Personnel Rules and Regulations" which superseded "all previous publications of this handbook and all other Evansville employment laws, rules, regulations, and other directives where inconsistent." Several provisions of this employee handbook are pertinent to these appeals. First, Section 2.C. of Chapter XII addresses the required pre-termination procedure applicable when the Department is considering terminating an employee for cause:
Termination. An employee's employment may be terminated by the appointing authority or his designated agent upon recommendation of the employee's department head for an infraction of a severe nature or a repeated infraction following earlier disciplinary action. Notice of termination shall be in writing, stating the specific details of the infraction(s), earlier disciplinary action taken for other, similar infraction(s) (if appropriate), reasons for the termination action, the effective date, and notice of the right to request an informal hearing before the appointing authority prior to the effective date of termination. Prior to termination (except in an emergency when immediate action is required), the employee may request an informal hearing before the appointing authority, which the employee and department head shall attend, for purposes of determining whether there is reasonable cause for termination. A tape recorded record of the informal hearing shall be maintained. The reasons for termination shall be documented, and a copy given to the employee, who shall initial or sign, and date the documentation to acknowledge receipt only. The documentation shall be included in the employee's permanent personnel file. [Emphasis added.]
[¶7] Second, Section 3 of Chapter XII addresses the required post-termination procedure applicable when a terminated employee appeals his termination:
Section 3: Appeal Procedures.
Permanent full time and part time employees of the Town shall have the right to appeal . . . termination actions. Notice of the appeal must be submitted to the appointing authority within ten (10) calendar days of the effective date of the . . . dismissal action. [Emphasis added.]
Section 3, as part of Ordinance No. 9-96, which was adopted on September 9, 1996, had replaced Article 23 of Chapter 2 of the Town's ordinances which in § 2-23-4(c) had entitled an employee dismissed for cause to "a hearing before the Governing Body within 30 days after the discharge by requesting the same, in writing, within 10 days of the date of discharge."
[¶8] On February 7, 2008, Police Chief Gentile called Porter into his office and questioned him about certain allegations made against him by two rookie officers. Also at this meeting were Lieutenant Thomas Laughrey of the Department and Porter's attorney. Before this meeting, Police Chief Gentile had not delivered to Porter any written notice of termination. The Police Chief did not tape record this meeting. Porter claims that at this meeting the Police Chief did not mention anything about terminating Porter's employment. On February 12, 2008, Police Chief Gentile again called Porter into his office and handed him a four-page letter of termination which stated, among other things, that Porter's termination was effective that date and that he could appeal that decision.
[¶9] By letter dated February 20, 2008, Porter's attorney and the Town's attorney agreed that Porter had a ten-day extension of the time to file a notice of appeal of Porter's termination. By letter dated February 27, 2008, addressed to the Town's mayor, with a copy to the Town's attorney, Porter's attorney gave notice of Porter's appeal of his termination. Over the following months, the Town's attorney and Porter's attorney discussed engaging and then agreed to engage a hearing examiner for purposes of Porter's post-termination appeal hearing. Sometime that summer, the attorneys engaged a hearing examiner who then held a scheduling conference with both attorneys at which deadlines were established, a motion hearing was set for September 12, 2008, and a hearing was set for October 6, 2008. On August 15, 2008, Porter submitted his disclosure statement listing witnesses and exhibits and his motion to dismiss or for summary judgment supported by his affidavit and a memorandum of law. Among other points, Porter's motion asserted that the Department had violated the provisions of the employee handbook governing the pre-termination procedures applicable to a termination for cause. The Department did not submit a disclosure statement or a response to Porter's motion to dismiss or for summary judgment. However, by letter dated August 20, 2008, the Town's attorney informed Porter's attorney that he had "concluded the Mayor and Council do not have jurisdiction to hear and consider Mr. Porter's attempted appeal." The Town's attorney stated that the employee handbook required Porter's notice of appeal to be served on the appointing authority who, by implication, was Police Chief Gentile who had hired Porter, and not the Town's mayor. He stated because Porter's notice of appeal had been served on the mayor, and not the police chief, that notice of appeal was defective, the appeal did not exist, and the time for appeal had run. He concluded that he had "advised the Mayor that in my opinion the appeal was not perfected, and therefore the Town does not have jurisdiction to hear or consider an appeal from Mr. Porter." The Town attorney's ipse dixit*fn1 aside, neither the mayor nor the Town's governing body notified Porter that they deemed Porter's notice of appeal to be defective and they did not have jurisdiction. They issued no formal decision on the matter.
[¶10] On September 11, 2008, Porter filed his "Petition for Review of Administrative Decision" with the district court. In his petition, Porter stated that he sought judicial review of agency inaction, or the denial of required action, in the failure to afford him administrative hearings on his termination from employment pursuant to the administrative rules adopted by the Town of Evansville. He identified the specific issues of law for review to be:
1. Did the Town of Evansville Police Department violate its own administrative rules when Petitioner was terminated and was denied his right to pre- and post-termination hearings?
2. Have the Petitioner's termination hearings been unlawfully withheld or unreasonably delayed, or is the Town's refusal to grant any termination hearings arbitrary, capricious, an abuse of discretion, in excess of statutory jurisdiction, authority or limitations, unsupported by substantial evidence, or otherwise not in accordance with law?
[¶11] The Department filed a reply to Porter's petition for review. The district court entered its order establishing a briefing schedule, and the parties filed their briefs. On July 23, 2009, the district court issued its "Decision Letter":
Enclosed you will find a certified copy of the Order of Reversal for Agency Inaction entered in the referenced case. As you can see, the Order finds that pursuant to the Town of Evansville's Employee Handbook and Chapter 2 of the Ordinances of the Town of Evansville, the Petitioner is entitled to an informal hearing and a post-termination hearing in connection with the termination of his employment with the Town of Evansville Police Department, that the failure and refusal of the Town of Evansville Police Department and Town of Evansville to follow the required procedures in ...